Yesterday, I gave a run-down of the D.C. District Court’s treatment of Freedom of Information Act (FOIA) Exemption 7(E) in a recent lawsuit between the Electronic Privacy Information Center (EPIC) and the Department of Homeland Security (DHS.) As I mentioned, the Court ultimately ruled that DHS must turn over the requested documentation to EPIC within 30 days. Here is how the Court analyzed and interpreted the second major issue in the case—FOIA Exemption 7(F).
Exemption 7(F) authorizes the government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records of information . . . could reasonably be expected to endanger the life or physical safety of any individual.”
Again, the Court found that DHS cleared the “law enforcement purposes” hurdle; but in regards to the second prong, requiring a showing that production of the documents would “endanger the life or physical safety of any individual,” DHS failed.
The Court construed DHS’s argument as a statement that “the ‘any individual’ test is satisfied because those endangered are any individuals near a bomb.” However, this interpretation was too broad for the Court. While the exemption is not, the Court stated, limited to protecting law enforcement personnel, the agency must identify individuals at risk with some degree of specificity to satisfy the “any individual” test.
In concluding that DHS must turn over SOP 303 (with certain retained redactions) to EPIC, it noted that this ruling was not a judgment on whether it is in the national interest for SOP 303 to be disclosed and that, if its disclosure ran contrary to this interest, the government may have other avenues to pursue.
Again, here’s a link to the full opinion.
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